Com. v. Jones, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL JONES :
:
Appellant : No. 139 EDA 2019
Appeal from the Judgment of Sentence Entered November 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0016321-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL JONES :
:
Appellant : No. 140 EDA 2019
Appeal from the Judgment of Sentence Entered November 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-001994-2009
BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 11, 2020
Darryl Jones appeals nunc pro tunc from his November 1, 2016
judgment of sentence of twenty-five to fifty years of incarceration, followed
by forty-eight years of probation, imposed in the above-captioned cases. We
affirm.
This Court previously summarized the facts of these cases as follows:
* Former Justice specially assigned to the Superior Court.
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At approximately 6:30 p.m. on November 2, 2008,
Appellant committed an armed robbery of Patricia Cassidy and her
boyfriend, Chris Gaglione, taking both victims’ wallets. Several
hours later, at around 10:35 p.m., Appellant committed another
armed robbery of brothers Christian and Michael Pekula, taking
both men’s wallets and Christian’s cell phone. After the robbery,
Christian Pekula called the police and provided a description of
Appellant.
Around midnight, two Philadelphia Police Officers, who were
patrolling in the area, spotted Appellant and believed he matched
the description of the armed robber. As the officers drove their
marked police car past Appellant, one of the officers observed
Appellant discard something that “appeared to be a firearm.” The
officers stopped and exited their vehicle, and as one officer went
to secure the weapon, the other officer approached Appellant and
asked for identification. Appellant pulled out a wallet and the
officer “noticed a bunch of IDs for white males.” Appellant, a black
man, could not explain why he had identification cards for white
males.
At that point, the officer “went to secure Appellant for the
investigation, because of the firearm on the ground and the IDs,”
and Appellant “began swinging at the officer.” Both officers
ultimately forced Appellant to the ground and placed him under
arrest. Shortly thereafter, Christian Pekula was brought to the
scene of Appellant’s arrest and Pekula immediately identified
Appellant as the man who had robbed him. Due to cuts on
Appellant’s face that he sustained when he resisted arrest, he was
transported to the hospital, where Patricia Cassidy also positively
identified Appellant. Additionally, at trial, Christian Pekula,
Patricia Cassidy, and Chris Gaglione all identified Appellant as the
individual who robbed them at gunpoint.
On September 29, 2011, at the close of his jury trial,
Appellant was convicted of, inter alia, four counts of robbery, one
count of unlawful possession of a firearm, and one count of
possessing an instrument of crime. On July 20, 2012, Appellant
was sentenced to an aggregate term of 25 to 50 years’
incarceration, which included three mandatory minimum terms of
5 years’ incarceration pursuant to 42 Pa.C.S. § 9712 (Sentences
for offenses committed with firearms). The court also imposed an
aggregate term of 53 years’ probation, to be served consecutively
to Appellant’s sentence of incarceration.
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Commonwealth v. Jones, 144 A.3d 187 (Pa.Super. 2016) (unpublished
memorandum at 1-3) (cleaned up).
Appellant proceeded pro se on appeal to this Court after we remanded
to the trial court for a hearing pursuant to Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). Several additional remands were necessary, delaying this
Court’s consideration of Appellant’s issues. Ultimately, we affirmed
Appellant’s convictions, finding his challenges thereto meritless or waived.
However, we vacated his sentences as illegal under Alleyne v. United
States, 570 U.S. 99 (2013), and its progeny, and remanded for resentencing
without consideration of any mandatory minimum sentences. See Jones,
supra (unpublished memorandum at 12-13).
On November 1, 2016, Appellant was resentenced as indicated above.
After no new appeal was filed from that judgment of sentence, Appellant
obtained reinstatement of his direct appeal rights through the Post Conviction
Relief Act (“PCRA”), with the assistance of counsel. Specifically, the PCRA
court entered an order dated December 12, 2018, providing that Appellant’s
motion to reinstate his appeal rights was granted.
On December 14, 2018, Appellant filed a notice of appeal purporting to
appeal from the “judgment” entered on December 12, 2018. As Appellant
was not aggrieved by the PCRA court’s December 12, 2018 order, this Court
issueda rule to show cause why the appeal should not be quashed. Appellant
responded that reference to the PCRA order was in error, and that he intended
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to appeal nunc pro tunc from his November 1, 2016 judgment of sentence.
On February 6, 2019, Appellant also attempted to rectify the error by filing
new notices of appeal indicating that he was appealing from his 2016
judgment of sentence.1
This Court, by per curiam order of February 21, 2019, amended the
captions of these appeals to reflect that Appellant’s initial notices of appeal
were from his November 1, 2016 judgment of sentence rather than the 2018
PCRA order. The order also indicated that the amended notices of appeal were
untimely and filed without this Court’s leave, and referred these issues to this
panel for resolution. Accordingly, before considering the substance of these
appeals, we must determine whether we have jurisdiction to do so.
We conclude that although Appellant’s designation of the wrong date for
the appealed-from judgment may have rendered the notice of appeal
defective, it did not affect the validity of the appeals. See Pa.R.A.P. 902
(“Failure of an appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal . . . .”); see also Foster
v. Mut. Fire, Marine & Inland Ins. Co., 676 A.2d 652, 657 n.5 (Pa. 1996)
(declining to quash appeal where notice listed only an order that had been
subsequently modified by a different order because the notice was timely and
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1 Appellant filed separate notices of appeal at each docket number in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
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it was obvious from the record that the appellant sought review of both
orders). Therefore, there is no need to quash these appeals on that basis. 2
Furthermore, Appellant’s February 6, 2019 amended notices of appeal
were not untimely. When a direct appeal from a judgment of sentence follows
a PCRA court’s reinstatement of a defendant’s direct appeal rights, the
defendant is required to file his nunc pro tunc direct appeal “within 30 days of
the entry of the order reinstating his direct appeal rights.”3 Commonwealth
v. Wright, 846 A.2d 730, 735 (Pa.Super. 2004). An order is properly entered
upon the docket by indication thereon of “(a) the date of receipt in the clerk’s
office of the order or court notice; (b) the date appearing on the order or court
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2 Indeed, this Court regularly amends captions to reflect the properly-
appealed-from orders when parties designate incorrect orders in their notices
of appeal. See, e.g., Commonwealth v. Shamberger, 788 A.2d 408, 410
n.2 (Pa.Super. 2001) (en banc) (correcting caption to reflect appeal from
judgment of sentence where the appellant purported to appeal from the order
denying his post-sentence motion); Medlock v. Chilmark Home
Inspections, LLC, 195 A.3d 277, 279 n.1 (Pa.Super. 2018) (correcting
caption to denote an appeal from judgment entered on the verdict although
the appellants appealed from the order denying their post-trial motions); In
Interest of N.C., 171 A.3d 275, 278 (Pa.Super. 2017) (altering the caption
to signify an appeal from the dispositional order despite appellant’s
designation of the order denying the post-dispositional motion as the order
from which he appealed).
3 Additionally, the PCRA court must inform the defendant that the nunc pro
tunc direct appeal must be filed within thirty days of the entry of the PCRA
order reinstating his rights. Commonwealth v. Wright, 846 A.2d 730, 735
(Pa.Super. 2004). This Court will not quash an appeal as untimely if the PCRA
court failed to provide that information. See id. at 735-36. The written order
at issue in this appeal includes no information about the time limits for doing
so. However, the PCRA court orally informed Appellant of the thirty-day time
frame on the record. See N.T. PCRA Hearing, 12/12/18, at 5.
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notice; and (c) the date of service of the order or court notice.” Pa.R.Crim.P.
114(C)(2).
The PCRA court’s December 12, 2018 order in the instant case has not
been properly entered on the docket. The entry for the order contains no
notation of the date upon which such service was made in accordance with
the mandates of Pa.R.Crim.P. 114(C)(2). As such, the thirty-day time period
for Appellant to file his nunc pro tunc direct appeal from his November 1, 2016
judgment of sentence has not yet begun to run. While we could quash these
appeals as interlocutory, we instead exercise our discretion to treat as done
that which ought to have been done and proceed to the merits of the appeals.
See, e.g., Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.Super. 2015)
(opting to treat notices of appeal as timely filed although the appeal period
had not started running because the clerk of courts did not note service on
the docket).
Appellant presents three issues for our determination:
A. Did the court below err in imposing virtually the same
sentence on remand that had been previously imposed
withut [sic] consideration of the sentencing factors set forth
in 42 Pa.C.S.A[.] [§] 9721?
B. Did the court below err in imposing a sentence tht [sic] was
unduly harsh, punitive, excessive nd [sic] arbitrary and
which, by virtue of being, in effect, a life sentence violate
the constitutional prohibition against cruel and unusal
punishment as set forth in the Pennsylvana [sic] constitution
and the Eigth [sic] Amendment to the United States
constitution?
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C. Did the court below err in allowing the Appellant to proceed
pro se in his intial [sic] appeal to this court thus creating a
situation where it was inevitble [sic] that Appellant would
file a defective brief in which issues of merit were deemed
waived?
Appellant’s brief at 7 (unnecessary capitalization omitted).
Appellant’s first two issues challenge the discretionary aspects of his
sentence. The following well-established principles of law guide our review:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(internal citations omitted).
While we have concluded that Appellant’s amended notices of appeal
were timely, he did not preserve his issues at sentencing or in a post-sentence
motion, and his brief does not contain a statement of reasons relied upon for
his challenge to the discretionary aspects of his sentence as required by
Pa.R.A.P. 2119(f). Further, the Commonwealth has objected to the absence
of a Rule 2119(f) statement. Consequently, we are constrained to hold that
Appellant has not preserved his sentencing challenges for our review. See,
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e.g., Commonwealth v. Taylor, 137 A.3d 611, 618-19 (Pa.Super. 2016)
(en banc) (“Appellant failed to raise his discretionary sentencing claim at his
sentencing hearing or by way of a post-sentence motion. As such, Appellant
did not satisfy the requirements to invoke this Court’s jurisdiction and, thus,
he waived his discretionary sentencing challenge.”); Commonwealth v.
Kiesel, 854 A.2d 530, 533 (Pa.Super. 2004) (“Because the Appellant failed to
comply with Pa.R.A.P. 2119(f) and the Commonwealth objected to the
omission, this Court may not review the merits of the claim[.]”).
Appellant’s remaining claim is that the Grazier hearing held at this
Court’s direction during Appellant’s first direct appeal was inadequate to
demonstrate a knowing, intelligent, and voluntary waiver of his right to
counsel, and that he waived several meritorious direct appeal issues the first
time around as a result. See Appellant’s brief at 25-27.
The Commonwealth concedes that the Grazier hearing appears to have
been deficient. See Commonwealth’s brief at 16. However, it notes that the
issue is not properly raised in this appeal because it is beyond the scope of
the resentencing that resulted from Appellant’s first direct appeal. See id. at
16-17. Appellant himself concedes that his challenge to the adequacy of the
Grazier hearing is beyond the scope of this appeal. See Appellant’s brief at
28.
We agree that the voluntariness of Appellant’s waiver of his right to
counsel in his first direct appeal is not properly at issue in this appeal. This
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Court has repeatedly held that a defendant whose first direct appeal resulted
in remand for the limited purpose of resentencing “is barred from raising any
issues other than a challenge to the sentence imposed on remand” in the
second direct appeal. Commonwealth v. Williams, 151 A.3d 621, 625
(Pa.Super. 2016). See also Commonwealth v. Cook, 175 A.3d 345, 350
(Pa.Super. 2017) (holding that the appellant could not, “following remand for
the limited purpose of correcting an illegal sentence, litigate claims that fall
outside the scope of the remand”). Rather, Appellant’s “only avenue for relief”
on this claim is “a collateral attack pursuant to the PCRA.”4 Commonwealth
v. Anderson, 801 A.2d 1264, 1266 (Pa.Super. 2002).
As Appellant has preserved no claim that warrants disturbing his
judgment of sentence, we affirm.
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
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4 Appellant did challenge the adequacy of the Grazier hearing in his October
11, 2018 PCRA petition under the guise of ineffective assistance of counsel.
See Amended PCRA Petition, 10/11/18, at ¶ 7(e). However, upon determining
that Appellant was entitled to reinstatement of his direct appeal rights, the
PCRA court properly declined to reach the merits of the remaining PCRA
claims. See, e.g., Commonwealth v. Miller, 868 A.2d 578, 580 (Pa.Super.
2005) (“When a PCRA court grants a request for reinstatement of direct appeal
rights nunc pro tunc, it may address, but not “reach” the merits of any
remaining claims.”). Therefore, Appellant is free to re-raise the issue pursuant
to the PCRA after his judgment of sentence is final. Based upon the
Commonwealth’s representations in its brief, we would expect that it would
not contest the cognizability of the claim under the PCRA. See
Commownealth’s brief at 17 (opining that the Grazier deficiency is “most
likely cognizable” under the PCRA).
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President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
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